Legal experts noted that most of the issues AAI raised are points of clarification Kollar-Kotelly would have sought during the normal Tunney Act proceeding. "If they had a smoking gun, I'm sure everyone would like to see it. But more of the same-old same-old, so what?" Stanton said. One area that concerns Foer is the Justice Department's failure to release "determinative documents that led to the proposed settlement," he said. "The Department (of Justice) has taken the position there are no such documents." AAI is asking Kollar-Kotelly to ensure there are in fact no additional documents. AAI also faulted the Justice Department for not disclosing its reasoning for rejecting one settlement proposal for another. In an argument some legal experts consider a stretch, AAI also said there are ambiguities in the settlement that could prevent consumers and competitors wronged by Microsoft's antitrust behavior from recovering damages. Based on a legal doctrine known as collateral estoppel, those people or companies can use the court's findings in pursuit of damages. Using Netscape as an example, those wronged are "entitled to the findings that are adverse to Microsoft," said Jeff Shohet, a managing partner with Gray Cary's antitrust practice in San Diego. AAI contends that ambiguities in the settlement might somehow interfere with people taking advantage of the doctrine. "Our position," said Foer, "is that collateral estoppel is not affected by the settlement, but when you read it, there are parts of the settlement that are at least ambiguous. And we think it is critical that the public should know whether Microsoft and the Justice Department are intending by this settlement to have any impact on collateral estoppel." Foer also leaned heavily on press reports to conjecture that Microsoft and government employees had conversations neither side disclosed. "It seems remarkable, given what we've read in the press about Microsoft's political side of this case, that none of this was disclosed," Foer said. "We also ask the court to describe the nature of the reported communication." But Stanton said the sort of talks Foer was referring to happen all the time and would have little bearing on the settlement. "Does anybody think they're going to see anything new and surprising coming out of legislative contacts?" Stanton asked. "Does anybody think Netscape hasn't been talking up legislators like crazy? It's no coincidence that a senator from Utah (Orrin Hatch), where Novell is headquartered, is one of the most outspoken critics of Microsoft. Likewise, it's not surprising that a senator from Washington (state) would be a proponent of Microsoft. Is this shocking to anybody?" Stanton added that, regardless, Capitol Hill has little power to affect what the Justice Department does. AAI also questioned whether Microsoft had properly designated the counsel of record, which would be a lawyer authorized to negotiate a settlement with the Justice Department. Charles "Rick" Rule, a Microsoft attorney with Fried Frank Harris Shriver & Jacobson, based here, largely negotiated the settlement with Assistant Attorney General James. Neither party would have to disclose conversations between James and the counsel of record. But AAI contends that Rule had not yet been officially designated counsel of record when he had his first talks with James, hence those talks should remain accessible. "This attorney was designated counsel of record after (some of) these conversations occurred," Foer said. "We ask the court to clarify that the counsel of record designation cannot be used retroactively to hide otherwise disclosable information." According to Microsoft though, Rule has been part of the legal team since 1997 and counsel of record since July 2000. "He was the counsel of record during the appellate process, and this is reflected in records filed with the Court of Appeals," Desler said. "Everyone involved with this case knows he was part of the team during the District Court and Appellate phases."
Think it's all over? The antitrust case against Microsoft can still go back the to Court of Appeals, and then there's the European Commission's investigation... See ZDNet UK's DoJ/Microsoft News Section for the latest headlines.
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